Commonwealth v Yarmirr & Ors Yarmirr & Ors v NT & Ors

[2001] HCATrans 10

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D7 of 2000

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Appellant

and

MARY YARMIRR, CHARLIE WARDAGA, KHAKI MARALA, ILIJILI LAMILAMI, JOY WILLIAMS, CHARLIE MUNGULDA, RACHEL NIMILGA, ANDREW YARMIRR, CHRISTINE YARMIRR

First Respondents

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

PASPALEY PEARLING COMPANY PTY LTD

Third Respondent

NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION

Fourth Respondents

OCEAN TRAWLER PTY LTD

Fifth Respondent

SHINE FISHERIES PTY LTD

Sixth Respondent

M.G. KAILIS GULF FISHERIES PTY LTD

Seventh Respondent

PAVALINA HENWOOD

Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST

Ninth Respondent

Office of the Registry
  Darwin  No D9 of 2000

B e t w e e n -

MARY YARMIRR, CHARLIE WARDAGA, KHAKI MARALA, ILIJILI LAMILAMI, JOY WILLIAMS, CHARLIE MUNGULDA, RACHEL NIMILGA, ANDREW YARMIRR, CHRISTINE YARMIRR

Appellants

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

PASPALEY PEARLING COMPANY PTY LTD

Third Respondent

NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION

Fourth Respondents

OCEAN TRAWLER PTY LTD

Fifth Respondent

SHINE FISHERIES PTY LTD

Sixth Respondent

M.G. KAILIS GULF FISHERIES PTY LTD

Seventh Respondent

PAVALINA HENWOOD

Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST

Ninth Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 FEBRUARY 2001, AT 10.17 AM

(Continued from 6/2/01)

Copyright in the High Court of Australia

________________

GLEESON CJ:   Yes, Mr Basten.

MR BASTEN:   Thank you.  Your Honour Justice McHugh asked a question yesterday and I gave your Honour a reference to Robinson v Western Australia Museum. Your Honour probably has the reference but I said I would give you the pages to which I was referring. It is (1976) 138 CLR 283, and the particular discussion which I thought might be of assistance was Justice Mason’s judgment at 329 to 330, and in Justice Jacobs at 338 to 340. I do not intend to take your Honour to that.

Your Honour also mentioned the notion of settlement yesterday, and the acquisition of sovereignty, and I think, your Honour, Justice Gaudron asked a similar question in relation to the time at which the common law was received.  This was a matter which was discussed briefly in Mabo [No 2] 175 CLR 1, and particularly in the joint judgment of your Honour Justice Gaudron and Justice Deane at pages 77 through to 78. And, as I understand your Honour’s conclusion at 78 at about point 3, it was that settlement was:

effected when, after the arrival of the First Fleet, Governor Phillip complied with his Instructions and caused his second Commission as Governor to be read and published “with all due solemnity”.

Now, we understand that your Honours were saying that that was the time at which sovereignty was established, and, of course, within the boundaries defined by the commission, itself, and that was, as it were, the legal act of settlement.  That appears to be consistent with the discussion at page 31 in Justice Brennan's judgment by reference to the principles.  His Honour refers to the letters patent, and also at page 34 to 35 where his Honour quotes from Blackstone.

We would have thought that, perhaps, it did not matter in this case, but that that was consistent with the approach which is outlined as a history in the article by Mr McLelland, as he then was, in 1971 volume 45 of the Australian Law Journal at 671 where his Honour dealt with the colonial and State boundaries in Australia and identified the times at which the changes occurred.  The reason I say that perhaps it does not matter in this case is that we are concerned with the addition to an existing settled territory, and we would have thought that in so far as the date at which sovereignty was acquired over that by way of extension of the existing colony of New South Wales, that was a matter which would have occurred at the time sovereignty was claimed in Australia.  Perhaps, I can merely note – I do not know whether I need to give your Honours a copy – but at page 672 of that article at column two Mr McLelland dealt with the extension in 1824 to cover this part of the northern coastline of Australia.

Might I also say, while we have the reference to Mabo at those pages, that I did refer your Honours, without taking your Honours yesterday, to the discussion of the Post Office v Estuary Radio principle, which was applied.  The references are again at page 78 in relation to the joint judgment of your Honours Justice Deane and Justice Gaudron at the bottom half of the page and particularly footnote (95) and again at page 31 where Justice Brennan expressly quotes from Lord Justice Diplock.

Your Honours, it follows from the discussion in the Seas and Submerged Lands Case, to which I took your Honours yesterday, that the only difference identified between the effects of the acquisition of sovereignty over land and over the territorial sea was that which flowed from the qualification on sovereignty accorded by international law flowing from the right of innocent passage.  Accordingly our primary submission is that the acquisition of sovereignty in relation to the territorial seas brought with it a common law as in relation to land and the qualification does not affect that legal mechanism, we say.  The other proposition which I put to your Honours ‑ ‑ ‑

KIRBY J:   How would one infer that?  Is this on some theory of the interaction between statute law and common law or is it on some principle that has been expressed in general terms in the statutes?  Why, if Parliament could have expressly provided that the common law shall apply, but did not, should a court, as it were, infer that which Parliament has remained silent about?

MR BASTEN:   I think there are two answers to that, your Honour.  One is the proposition derived from Estuary Radio, namely that what the courts are required to do is to recognise the claim of sovereignty, but then identify and give effect to the domestic law consequences.  The second part of the answer is that that is precisely what we understand this Court to have been doing in Mabo [No 2] and the principle that Mabo established was that the acquisition of sovereignty over the land mass did not disturb the property rights, but by imposing a new sovereign with a new judicial system, permitted their protection in the common law courts or the courts as established by that sovereign and that protection was no longer available, as it were, under the existing system which had been to that extent replaced.  That is the mechanism which we submit applies in relation to the seas as well. 

McHUGH J:   Do you accept that in this area the common law and its recognition of native title can both expand and retract?  After all, the common law develops and in Mabo at page 59 Justice Brennan accepted that the common law had developed in Amodu Tijani’s Case to recognise an interest which at an earlier stage it had refused to do.  If you accept that, it seems to follow that the common law can both expand and, in certain circumstances, retract.

MR BASTEN:   Yes.  I am sorry.  I suppose my hesitation was an ingrained habit of thought about the declaratory theory of the common law, but, yes, I would accept entirely what your Honour puts.

McHUGH J:   Yes.

MR BASTEN:   The other aspect of the question which ‑ ‑ ‑

McHUGH J:   Even if the Solicitor-General for the Commonwealth was correct in his analysis, do you see any problem of taking the step to say that in any event the common law should now recognise these interests offshore that at least are within the territorial sea and so on?

MR BASTEN:   No, precisely.  We do not see any difficulty in that and the reason, ultimately, is a similar reason to the policy underlying the discussion in Mabo (No 1), namely the desirability, so long as skeletal principles are not fractured, of extending in a just way the protection of the law to all citizens and what we say is the effect of a failure to recognise in the territorial sea rights of the indigenous inhabitants is an arbitrary distinction between those rights where they exist over the land mass and those rights which exist under their traditional laws and customs in relation to their sea country, and, as I will take your Honours in the next appeal, there is strong evidence that these people see themselves as salt water people whose existence and dependence for both their culture and their economy is the sea and the resources of the sea.  It is the same principle of equality of treatment which will allow recognition of those rights in the sea, we would say.

May I go briefly to Attorney‑General for the Province of British Columbia v Attorney‑General for Canada [1914] AC 153. I do so for a limited purpose, namely for the proposition, or perhaps for two propositions. The first is that to which I adverted last night, namely that – and this appears in the speeches in the Privy Council at page 169 at about point 3 where it is said:

But their Lordships are in entire agreement with –

Lord Hale –

on his main proposition, namely, that the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal water alike.  The legal character of this right is not easy to define.

In other words, it was clear that the restriction on the prerogative right of the Crown to grant proprietary interests inconsistent with the public right to fish extended to the high seas.  It was therefore part of that principle that there was such a prerogative power.  Perhaps that is established for this Court’s purposes by Seas and Submerged Lands Act Case.

The second proposition to which I go to that case is to note that the fisheries are themselves an interest in property.  May I take your Honours to page 167 in a passage beginning at about point 8, “The general principle is”, towards the foot of that page and a passage which runs over to the middle of the next page.  Again, perhaps as a matter of completeness – and I will not spend time on it – those principles were, of course, accepted in a case which had nothing to do with possible native title claims, Harper v Minister for Sea Fisheries 168 CLR 314 in the judgment of Justice Brennan, with which the Chief Justice and Justices Deane and Gaudron agreed, in particular at page 329, where the relevant passages from Lord Haldane’s speech are set out.

Might I note as a matter of passing that this consequence of Magna Carta, of course, was a novel proposition.  If one goes back to Magna Carta, this constraint on the prerogative power of the Crown is by no means apparent.  It really only derived, as their Lordships noted from Malcolmson v O’Dea, which is referred to in the middle of page 329 in Harper, in 1863.  So my point that the common law was capable of and knowledgeable of interests of a property nature in the high seas was really only established in 1863 in relation to Magna Carta.  This is not some element of esoteric law.

The second aspect of Harper’s Case to which I should draw your Honours’ attention is that at the bottom of that page Justice Brennan says:

Accordingly, the right of the owner of the soil over which the waters flow (whether the owner be the Crown or not) to enjoy the exclusive right of fishing in those waters or to grant such a right to another as a profit à prendre is qualified by the paramount right to fish –

We understand his Honour would be dealing with the concept of radical title in that passage in which he certainly supposes that there might be a title in the Crown in the seas and at the next page his Honour refers to, without criticism, Lord Fitzhardinge v Purcell at about point 3 where:

Parker J held that the Crown might grant title to the bed of the sea –

and so on.

GLEESON CJ:   Mr Basten, because of the order in which we are dealing with these appeals, from one point of view we may be approaching this problem from the wrong end.

MR BASTEN:   Yes.

GLEESON CJ:   We have not yet had to look at this, but what exactly are the rights and interest which your clients claim?

MR BASTEN:   Yes.

GLEESON CJ:   I am not inviting you to develop that because I realise that is the subject of the second appeal.

MR BASTEN:   Yes.  I was going to make a point about that, your Honour, because when we come to the second appeal there are a set of issues as to the limitations on recognition by the common law.  The short answer to your Honour’s question is that we accept that the common law recognition of our rights is subject to the right of innocent passage because that is a qualification on sovereignty.

KIRBY J:   By international law or by Australian law or by both?

MR BASTEN:   By Australian law, for our purposes, probably by the common law prior to the Seas and Submerged Lands Act, but by that Act expressly, which contains the qualification in section 6, I think, expressly, your Honour. I may need to come to that at a later stage. What we say in relation to the public right to fish is that our fishing rights prevail over that.

GLEESON CJ:   Accepting that there may be qualifications on your rights and interests, what exactly are the rights and interests which you claim under section 223 of the Native Title Act?

MR BASTEN:   Which we claim or which we seek to have recognised in the determination?

GLEESON CJ:   Yes, the latter.  What are the rights and interests?

MR BASTEN:   They are set out, your Honour, in a draft notice of appeal, which we amended and filed recently, largely to tidy up some of the drafting.  Is it sufficient if I refer your Honour to that document, because we have suggested some alternative aspects of the determination?  If your Honours see “orders sought” on page 4 through to pages 5 to 6 include the definition of our rights and interests as we seek to have them recognised.

KIRBY J:   This is in D9.

HAYNE J:   Is that identical with what you have in the submissions in D9, pages 39 and following?

MR BASTEN:   In substance, yes, your Honour.

HAYNE J:   But not in drafting?

MR BASTEN:   Not in drafting, and we filed a copy with the drafting changes highlighted on it, if your Honour wishes to see precisely what has been done.

GLEESON CJ:   The first right or interest that you claim is said to be a right to occupy, use and enjoy the waters of the determination area to the exclusion of all others.

MR BASTEN:   Subject to the qualifications in paragraph 6.

GLEESON CJ:   Yes.

MR BASTEN:   Yes.

GLEESON CJ:   Now, what do you mean by a right to occupy waters?

MR BASTEN:   I am happy to answer the question now, your Honour, but it was really something I intended to spend some time on in relation to D9 as part of that argument.  What we have sought to do in identifying those rights is to distinguish between occupation which we meant in a factual sense and possession which may constitute a legal translation of the traditional law and custom into common law terms and we therefore distinguish that in case it was thought there was a difficulty between those two concepts.  If “occupy”, in this sense, is seen as a common law concept, then it may be subject to the same complaint.  Ultimately, the rights which we say arise under traditional law and custom are probably best described as control of access to the area and control of use of the resources of the area.

GLEESON CJ:   My question was prompted by the passage that you read from the Privy Council decision and from Harper and your point that since the decision in Malcolmson v O’Dea it has been accepted that the Crown could not in the exercise of its prerogative create exclusive rights of fishery.

MR BASTEN:   Yes.

GLEESON CJ:   Is the right that your clients claim a right that is more extensive than could have been created by the Crown after settlement?

MR BASTEN:   Yes.  Yes, it is, your Honour.  We deal with that idea in the second appeal as it was dealt with below as part of an argument that to recognise such a more extensive right would fracture a skeletal principle of the common law.  Adopting that terminology from Mabo, that was the analysis which was adopted below.  But that seems to assume – indeed, I am sure it does assume – that the common law has application for the purpose of considering the recognition of such a right, and, accordingly, that issue is not properly dealt with in this appeal, we would understand. 

KIRBY J:   Putting it globally, and not, therefore, entirely accurately, is your client’s claim, therefore – and we will get to this in D9 – to, as it were, have exclusive right of fishing in the area claimed, but subject to the right of international and national traffic to freely pass within the space, and, secondly, subject to those fisher people and others who have licences under Northern Territory law? 

MR BASTEN:   Yes, yes.

KIRBY J:   And does the matter include the parties to these proceedings, D7, who are pearling and other licensees? 

MR BASTEN:   Yes, indeed, your Honour.

KIRBY J:   So you acknowledge their rights, do you?

MR BASTEN:   Yes.

KIRBY J:   So all you would, at the bottom line, be seeking to do as a matter of practicality and subject to any supervening, valid legislation to the contrary that came later, would be to exclude and control the entry of other pearlers and fishers who are not simply passing through, and who are not presently licensed, to enter into your sea country? 

MR BASTEN:   In broad terms, that is right, your Honour.  One of the things we say in the written submissions in the other appeal is that, contrary to the Commonwealth’s view, the right of innocent passage and the right of navigation, for example, are purposive rights.  They do not permit access for all purposes. 

McHUGH J:   What about the innocent fisher, the casual weekend fisherman, who wants to go out and fish for tuna or something?

MR BASTEN:   Yes.  We say we have a right to exclude a person who is simply relying upon the public right to fish. 

GLEESON CJ:   Or, in more practical terms, to make them pay you a licence fee. 

MR BASTEN:   That may be so.  Perhaps one should explain:  in the Northern Territory, unlike some southern parts of the country, they do not require licences.  I mean, there is a tendency for everybody who exercises a right of fishing these days to be required to have a licence, but there is no statutory provision which gives them any particular rights in relation to any particular waters.  So whilst that situation prevails, that would be the effect, your Honour, yes. 

Might I say this, that the question of the rights of persons holding licences of course depends not so much on the recognition of the native title as on the future act regime, now under the Native Title Act, because the government has power to issue authority to people to do things which would impair native title. And, as we say in the submissions, it is probably section 24NA of the current Native Title Act which would need to be complied with.  If that provision were complied with to give people rights of fishing in our waters, then they could validly enter for that purpose.  So that the Native Title Act itself makes provision to the extent that the Parliament or the government seeks to override, as it were, or impair other ‑ ‑ ‑

KIRBY J:   Does that provision provide for compensation to the native title owner?

MR BASTEN:   Yes.

KIRBY J:   And that is what you would be asserting:  your entitlement henceforth to have that statutory benefit?

MR BASTEN:   Yes, if there were impairment to that extent, yes.

KIRBY J:   In respect of “foreign”, one reads of foreign fishing vessels entering Australian waters and being chased by Australian defence personnel.  Is that under the basis that they are not licensed to fish under the Northern Territory statute, or some other basis, are you aware, or is that a third exception?

MR BASTEN:   No, well, I do not think we make the exception specific to Northern Territory laws.  The Commonwealth and the Northern Territory have a joint control over them, or joint in some areas and the Commonwealth alone in others, over the fishing zone around Australia which extends, I think, 200 kilometres, well beyond anything we are concerned about.

McHUGH J:   Can I ask you, how do you seek to distinguish between the public right of navigation and the public right of fishing?

MR BASTEN:   Only to the extent that they may not apply in the same waters.  If they apply in the same waters, there is probably ‑ ‑ ‑

McHUGH J:   But you seem to concede that there is a public right of navigation through the area you claim, but you say there is no public right of fishing?

MR BASTEN:   No, that is a distinction that we seek to make in the other appeal.  I can give your Honours ‑ ‑ ‑

McHUGH J:   Yes.  No, I was just wanting to know whether you make ‑ ‑ ‑

MR BASTEN:   We do seek to make that distinction, yes, your Honour, for the reasons we have set out in the written submissions too, and ‑ ‑ ‑

HAYNE J:   Just while we are at this level of generality of what you are seeking, do you use “waters” in the defined sense, that is, including the subsoil?

MR BASTEN:   Yes, we have used “waters” in the defined sense in the Native Title Act.  That was one of the reasons for the drafting.

HAYNE J:   Thus, are we concerned with more than fishing?

MR BASTEN:   Yes, indeed, yes.

HAYNE J:   Yes.

CALLINAN J:   Mr Basten, you mentioned section 24NA of the Act – I do not want to distract you from your argument – but under what head of power do you say subsection (7)(b) was enacted, which appears to impose upon the States, if they resume native title or acquire it, an obligation to pay compensation? Would that be the race power or ‑ ‑ ‑

MR BASTEN:   I am sorry, I have just forgotten for the moment whether, if the Act is attributable to the State, there is State legislation required in order to ‑ ‑ ‑

CALLINAN J:   There may be.  Perhaps there is mirror legislation.

MR BASTEN:   Mirror legislation, yes.

CALLINAN J:   In any event, I do not want to take you off your argument.  If you can help me on it later, I would be grateful.

MR BASTEN:   Yes.  The general principle is not new to the 1998 amendments that the current Government – I am sorry, 24NA is one of the extended future Act provisions which the present Government enacted in 1998.  Before that, there were similar but no so detailed provisions.  The analysis of those appears in the Native Title Act Case and perhaps I should simply give your Honour the relevant references in that because the question of compensation for impairment was considered by the Court in that case.

CALLINAN J:   Thank you, Mr Basten.

MR BASTEN:   I appreciate that the form of the Act has changed significantly.

Your Honours, I think prior to those comments I had said what I wanted to say in relation to our primary argument, namely, that sovereignty in relation to the territorial seas brought with it the common law.  Might I, before going on to the statutory provisions which we discuss in our written submissions, make one other point, though.

The common law relevantly has two aspects. One is a substantive operation in relation to native title, which is what we say is picked up by section 223(1)(c). The other is a geographical operation which, given the terms of section 6 of the Act, we would say section 223 says nothing about. In other words, one goes to section 6 to identify the geographical operation of the Native Title Act.  If our first submission is not accepted, then one goes to the plethora of statutory provisions which either declare or enact, we say, a similar result in relation to the territorial seas.

The Seas and Submerged Lands Act is the first of those.  I do not intend to take your Honours to that in any detail.  We say the effect of it is as indicated by Justice Mason and others in their Honours’ judgments in the case.  The only point which I would draw your Honours’ attention to, which I think the Solicitor for the Commonwealth may not have taken your Honours to yesterday, is the terms of Article 1 at page 279 of the bundle provided by the Commonwealth, namely:

The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.

Article 2 refers to the air space over and the bed and subsoil below that sea. That is the basis of the statutory provision to which your Honours were taken in section 6 of the Act, which appears at page 276, and I think I need say nothing more about that.

Your Honours, after the Seas and Submerged Lands Act, there were changes made to the Acts Interpretation Act, including the introduction of section  15B in terms which provide that legislation of the Commonwealth extends to the coastal sea, and coastal sea in that context is defined in an ambulatory sense which picks up the variations which occurred over time.  Section 15B is set out at page 268 of the Commonwealth’s bundle.  The definition of coastal sea is at subsection (4) on the following page.

In our written submissions at page 28 and footnote 147 we refer to the second reading speech of the Attorney-General, Mr Ellicott, in relation to the reason for the introduction of that provision.  We also suggest that it may be that the purpose of making express the application of Commonwealth laws to the territorial sea was actually the indication from the Court in Pearce v Florenca that the mere grant of power in relation to the territorial sea may not have meant that the statutes of the Commonwealth were therefore inconsistent with State laws.  This was intended to make clear the intention of the Commonwealth statutes that they applied in relation to the territorial sea.  That aspect of it is not relevant for present purposes, perhaps.

The operation which it has for present purposes is, in our submissions, that it picks up, if it were not otherwise the case, section 80 of the Judiciary Act and, thereby, makes the application of the common law provided by that Act clear in relation to the territorial sea of Australia.  Might I just say in response to the Solicitor’s argument that section 80, which is set out, if your Honours are still with his bundle, at page 235, is not to be read down, we would say, by some implicit restriction that may be found in the common law itself in its geographical application by the words which appear in the fourth‑last line, “so far as it is applicable”.  We would read that phrase as a reference back to the opening line of section 80, which says:

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient –

and so on, then the common law will apply and the concept of applicability is mirrored, we say.

HAYNE J:   But the reference to section 80 draws attention to the fact that asking where the common law applies, if that question is framed in a vacuum, may not be useful. 

MR BASTEN:   I agree.

HAYNE J:   The question is, what will a court sitting in Australia do?  What will it do in respect of events or claims or people that may have some territorial nexus?  To ask where the common law applies is to ask a question at too high a level of that extraction.

MR BASTEN:   I accept that, your Honour.  In making these points I was really seeking to answer quite specific points made by the Commonwealth.  We would have thought that once one has a court which by agreement has jurisdiction to deal with a matter then the only question is what law, if any, the court can apply in resolving a particular dispute.

HAYNE J:   And what rights it recognises.  What duties it will impose.

MR BASTEN:   Indeed.  The way that the Commonwealth puts that argument, as we understand it, is that in relation to the territorial sea the common law of Australia will apply so that disputes, rights and obligations giving rise to disputes in relation to matters which are personal to the parties may be resolved but that there is a principle identified by them as the lex situs which says that that cannot apply in relation to rights which arise from a relationship with land.  We say that merely restates the question because the lex situs, if it has any meaning, has meaning as a choice of law rule and one simply asks again, “Well, what is the law of that place where the rights and obligations are said to have arisen” which merely rephrases the question rather than answering it.

We say that the common law is not so limited.  We say that there is no authority which would so limit it and that in fact the common law applies, as the Commonwealth concedes, whatever the nature of the rights may be in the territorial sea, but we accept the way that your Honour puts the substantive question to be answered in these proceedings. 

May I then just briefly note, for the purposes of answering one or two points made by the Commonwealth, the subsequent legislation because the Solicitor argues that one does not get to the operation of the common law – and I am sorry to keep putting it in those terms but I understand the argument is put in that way – until rights are expressly identified in those terms under the offshore constitutional settlement and he accedes to the proposition, as I understand it, that the 1985 Northern Territory Ordinance to which he took your Honours has the effect of allowing courts to apply the common law for the first time in relation to that part of the territorial sea which is adjacent to the Northern Territory.

He says, however, that there are no rights which can then be recognised by the common law because they have been extinguished by the Coastal Waters (Northern Territory Title) Act 1980, vesting title by section 4 in the Territory. We say three things in response to that. Firstly, the vesting which occurs under that provision is a vesting of the radical title in the same way that radical title was vested in the Territory pursuant to the Self-Government Act, and think Justice Gummow referred yesterday to Newcrest. The passage specifically upon which we rely is at 190 CLR 513 is the beginning of the case and your Honour made that express at page 615 in the first full paragraph in the judgment we understand other members of the Court concurred in.

Might I say then just by way of parenthesis that this vesting took place after the commencement of the Racial Discrimination Act on 31 October 1975.  If, as the Commonwealth says, the vesting had an effect in relation to native title or could have had such an effect, then one must be conscious of the operation of sections 15, 229 and 232 of the Act.  If the act in any way impaired or extinguished native title, it was validated by section 15.  The validation depended on it being a past act of one of the kinds identified.  At section 229 the principal category of extinguishing past acts, category A past acts, are described.  They include the grant of freehold estates and not the creation of a freehold estate by a statutory vesting, although section 15 clearly envisages the creation of an estate in any way by legislation.

That is not the point for present purposes, but if one looks at grants, 229(3)(d)(i) expressly excludes from this category:

a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity –

In other words, the Act seems to reflect the concept that even a grant by the Crown to the Crown is effective to transfer a radical title which will not extinguish native title.  If one is not within the concept of a category A past act, category B past acts relate to leases granted, category C at section 231 to mining leases and category D includes any other past act which must include the vesting of the kind referred to here, to the extent that it does affect native title if it does, in which case section 15 provides that the non‑extinguishment principle applies.

One finds a similar scheme in section 23B excluding Crown‑to‑Crown grants from what would otherwise be the effect of a grant of a freehold estate, but that is merely consistent, we say, with the concept that what is transferred by this statutory provision is a radical title which would not affect native title. If that were not the case, then we would achieve the same result by different means. Mr Solicitor says that section 4(2)(a) of the 1980 Title Act at page 231 of his bundle does not pick up subsisting interests which are native title interests because, as part of his argument, he says those interests have not been recognised by the common law.

If it is possible to interpret that provision in a way which does not interfere with those interests, that would be consistent, we would say, with the Native Title Act but, in fact, that is the suggested interpretation, namely, that subsisting interests include native title.  It follows from the fact that the Racial Discrimination Act has already provided a level of protection in relation to those Acts.  That is because what is protected by the Racial Discrimination Act are not simply rights in property which were legally enforceable under the common law as the municipal law of Australia but the human right identified in the convention.

Accordingly, with the enactment of the Racial Discrimination Act, if the common law had not by that stage provided protection to these property rights, we say they would have thereafter been protected.  May I simply refer your Honours to the passages in Mabo (No 1) which were cited with approval by this Court in the Native Title Act Case, 183 CLR 436 to 437. If those interests are for this purpose subsisting interests, then they are protected in any event upon the transfer under the Title Act.

Your Honours, those are the matters of detail that I sought to deal with in addition to what we have said in our written submissions, which the Court has and which I will not take the Court to now.  May I simply say that we continue to rely upon them.

The final proposition I was going to put to the Court was that which I put in answer to your Honour Justice Hayne’s question as the way in which we understand the question to arise and I think I have indicated the answer we say should be given in relation to that question as to the law which is to be applied and why.

May I turn very briefly to ground 4 of the Commonwealth’s appeal which relates to New Year Island and the land to the north and to the east of New Year Island.  Firstly, your Honours, might I refer your Honours to the passages in our written submissions in which we set out our response in some little detail.  It begins at page 35 of the written submissions and I would not intend to take your Honours through it in any detail except to emphasise two points.

Firstly, and I will not take your Honours to it, but in the extract from page 622 of the transcript, which is set out at the top of page 36 we omitted to include a line which was read to your Honours yesterday indicating that Mr Howie, then counsel for the claimants, who was asking questions of Mr Wardaga, records on the transcript at line 25 on page 622:

You are pointing to the north and to the east at about 40 degrees.

In other words, north‑east:

You say that is outside and that is Government?

I say that to point out that there was clearly an indication being given at this place on New Year Island which is only by inference and brief description before your Honours.

GAUDRON J:   I just do not have any concept of pointing to the north and east at 40 degrees.

MR BASTEN:   Forty degrees is a little short of north‑east.  I think that was the intention.

GAUDRON J:   I see.

MR BASTEN:   It is not pointing in two directions but at 40 degrees, which is between north and east, but your Honour illustrates one of the problems with this ground.

GAUDRON J:   So you would say that means at 40 degrees north‑east.

MR BASTEN:   Yes, and certainly not pointing simply to the east.  The point is secondly made at the bottom of page 36 where we extract the passage from Mr Pauling’s cross‑examination.  He says he was:

here for the Northern Territory Government –

The Commonwealth was not there separately.  They were not there to cross‑examine this witness, although they now challenge his evidence.  That was by an arrangement.  As I understand it there were limited places available on the helicopter and Mr Pauling undertook the cross‑examination, but he says at the bottom of the page:

You were mucking around with bits of coral there with Ross and saying this island was McCluer Island and that island was Oxley –

and so on.  In other words, it is perfectly clear that whatever your Honours might make of the bits of coral in the sand would not be as advantageously interpreted as the trial judge’s interpretation.

The other point that we sought to make in these submissions was that it was not simply Mr Wardaga’s evidence.  There was the report of the anthropologists, Drs Peterson and Devitt, which is set out and your Honours may not wish to go to it but it is in volume 7 of the appeal papers and there maps in which they indicate the extent of the various estates of the people in relation to the sea.

CALLINAN J:   But Mr Basten, did not Justice Olney hold that he would only treat the anthropologists’ report as probative to the extent that it was confirmatory of oral evidence given?

MR BASTEN:   He said a number of things about it, your Honour, but he accepted as uncontroverted many aspects of the facts which were set out in it.

CALLINAN J:   But the general proposition I have put to you, I thought – I may be wrong – I thought it ‑ ‑ ‑

MR BASTEN:   You said that.  No, no, you did, your Honour, to the extent that that was so.  There is a question about whether this evidence of Mr Wardaga confirmed what they said in this respect.  All I am trying to say is that there is a huge difficulty with this Court in assessing that aspect of the matter.

CALLINAN J:   It is hardly appropriate to refer to something that may - depending upon the view that you take of it, there may be contradictory of the oral evidence when his Honour ruled, in my view, provisionally anyway, correctly, that the anthropologist report needed to have as a basis oral evidence to the same effect or admissions or agreements or something of that kind.

MR BASTEN:   My point is only, your Honour, that the Commonwealth says that the oral evidence was inconsistent with, rather than consistent with the report.

CALLINAN J:   I see, right.

MR BASTEN:   They did not cross-examine the witness to establish that nor did they cross-examine Peterson and Devitt to establish that.

CALLINAN J:   But one can read the report and one can read the oral evidence, the transcript of it, and it is either consistent or inconsistent on its face, I would have thought.

MR BASTEN:   Well I think what I was seeking to say was that one cannot really read the transcript usefully in a case like this and understand what inferences his Honours may have derived from particular aspects of the evidence; there are particular difficulties.  I do not wish to accentuate that point.  We set it out in the written submissions.  I was merely going to say that at page 1622 of volume 7 is the indication given by the anthropologists as to the approximate location and extent within the application area of the Mangalarra estate.

KIRBY J:   What is that page again?

MR BASTEN:   Page 1622, your Honour, in volume 7.  The point, of course, is firstly that the indication is only within the application area.  It may have extended beyond.  It and it was in that sense, I think, that his Honour referred to the lines drawn for the purposes of the claim as somewhat arbitrary and we say that, at least so far as the eastern boundary is concerned, the Court would be entitled to infer that there may be other claims by other estate groups are going beyond that sharp line drawn from Cape de Courcy to a point to the east of Gurrmurl.  Your Honours, I do not wish to do more otherwise than to rely upon what is said in the written submissions in response to that ground, if that is a convenient course for the Court.  Those are our submissions on this appeal.

CALLINAN J:   Mr Basten, before you sit down could I ask you a question please.  Could I draw your attention to something that Justice Toohey said in Mabo at page 180, where he cites with approval a passage from McNeil “Common Law of Aboriginal Title” about halfway down the page.

MR BASTEN:   Yes, your Honour.

CALLINAN J:  

The blurring of the distinction between sovereignty and title to land should not obscure the fact that:

“the former is mainly a matter of jurisdiction” –

and so on.  Do you have any submission in relation to the application of that passage to the sea and to the assumption of sovereignty over the sea?

MR BASTEN:   I perhaps need to pick up the context of this, your Honour, but his Honour is there talking about the effects and the consequences of annexation and therefore the consequences of the acquisition of sovereignty.

CALLINAN J:   Yes, but the thrust seems to be that sovereignty and title are quite different concepts and sovereignty does not necessarily embrace title.  That seems to be plainly the thrust of it.

MR BASTEN:   Yes.

CALLINAN J:   Which is not inconsistent perhaps with the Solicitor’s argument, but it may not be inconsistent with yours either.

MR BASTEN:   Yes.  Well that may be so.  I am not sure whether it is in the passage which his Honour there cites from the Western Sahara Case, but there is an indication in the judgments of Judge Ammoun, I think.  It may be in the passage which Justice Brennan cites from that case, that there is some difficulty in distinguishing sovereignty and title particularly under traditional law and custom, and we make this point in relation to the next appeal and I will come back to it perhaps, your Honour.

CALLINAN J:   Yes, whatever is convenient, Mr Basten.

MR BASTEN:   Yes, obviously in a society which does not have a separate parliament or body which is the supreme law‑giving authority, but where rights arise, as it were, from the relationship with the land and which are to that extent dependent upon title, there may be a significant difficulty in making that distinction.  For the purposes of a court, of course, sovereignty has gone, but title may remain, so that those aspects of traditional law and custom need to be distinguished.  But what I think that his Honour was dealing with in this passage was rather the failure to make that distinction in the common law cases such as Southern Rhodesia and, if I recall correctly, this is really the rejection of the terra nullius argument of the extended kind.  In other words, where there is a people who have proprietary rights, then a change of sovereignty will not extinguish those rights.

CALLINAN J:   I do not doubt that it is in that context, but the passage may have a broader application than that.

MR BASTEN:   Yes, it may, your Honour.  I think it is true to say that I come back to that aspect in the next appeal which will probably be reasonably shortly, so I can ‑ ‑ ‑

CALLINAN J:   Yes, Mr Basten.

MR BASTEN:   Yes, thank you, your Honour, I understand the question.

GLEESON CJ:   Yes, Mr Solicitor for the Northern Territory.

MR PAULING:   Your Honour, Ms Webb will present the argument in D7.

GLEESON CJ:   Ms Webb.

MS WEBB:   Your Honours, the Court has heard submissions from parties and interveners as to the effect of the Seas and Submerged Lands Act Case and the legislation enacted following the offshore constitutional settlement, and in respect of those matters, we accept the following:  that the Seas and Submerged Lands Act Case establishes that at common law land law does not go beyond low‑water mark and that, as a result of the legislation enacted following the offshore constitutional settlement, and whether by the Coastal Waters (Northern Territory Title) Act or by the Coastal Waters (Northern Territory Powers) Act or by the Off-shore Waters (Application of Territory Laws) Act, the Crown in right of the Northern Territory obtained radical title to three nautical miles as later extended by straight baselines, and consistent with the position in South Australia, the internal waters of the Northern Territory include bays and gulfs.

Unlike Western Australia, we do not assert that the Crown acquired more than radical title to the seabed.  Nevertheless, as is apparent from our written submissions, we do not say that radical title in the Crown is a basis for recognition of native title offshore, nor do we say that the acquisition of sovereignty is a basis for recognition of native title offshore, nor do we say that the application of the common law to an offshore area is a basis for recognition of native title offshore. 

The real area of dispute in this appeal is the meaning of the words “recognised by the common law” appearing in section 223(1)(c) of the Native Title Act and it is native title as defined by section 223 of the Act to which sections 3, 10 and 11 extends statutory recognition and protection. We say that “recognised by the common law” in section 223(1)(c) means what it meant in Mabo [No 2] (1992) 175 CLR 1.

If I could take your Honours to appeal book 11, at page 2190 in the judgment of Justice Merkel, at paragraph  375.  We say his Honour has put the position correctly there.  His Honour says:

Mabo’s case, although concerned with a specific claim to native title to land held under an established land holding system on an offshore island, establishes the conditions for recognition of native title to other claims, whether on the mainland or to the sea or the sea-bed.  However, as was said in the second reading speech, the NTA did not “codify native title rights”;  rather, those rights were left by the legislature to be determined by the court on a case by case basis.  Accordingly, as was observed by Mason CJ, Brennan, Deane, Toohey, Gaudron, and McHugh JJ in the joint judgment (at CLR 452;  ALR 36) in the Native Title Act case: 

“The common law concept of ‘native title’ is incorporated into the definition contained in s 223 (1) of the Act…”

Your Honours, the native title rights and interests recognised by the common law in Mabo [No 2] were the pre-existing rights and interests in land which were derived from the laws and customs of the indigenous occupants of the land at the date of acquisition of sovereignty. 

KIRBY J:   Just pausing there, can I ask:  you have indicated certain differences from Western Australia, and certain commonalities with the submission of South Australia, as I understand it.  Are you going to, at some stage, identify clearly where your line of departure from the Commonwealth’s submissions is?

MS WEBB:   Your Honour, our line of departure from the Commonwealth’s submissions is that we do not say that you need to have the application of the common law offshore in order for the common law to recognise native title in that area. 

KIRBY J:   So that I will get it into my mind, is your notion that the Australian court which has the power to extend the recognition of the common law to this external orbit, having jurisdiction from the presence of persons in the jurisdiction before it, can invoke its common law to extend recognition to the native law system, and that that is something it can do, the common law developing and adapting to the explanation of the existence and respect common to native title stated in Mabo, or is it something different? 

MS WEBB:   We would accept that the common law could develop in that way to recognise the native title rights and interests offshore, but our primary proposition is that it does it in any event.  And that is by virtue of the fact that these were rights and interests that were exercised in an adjacent sea area by the occupants of the land; and that that use and enjoyment of the sea area is inextricably linked with the occupation of the land; and that there is no differentiation in the terms of the connection that indigenous inhabitants had with their land and sea country.

KIRBY J:   And all of this is by the force of the common law applied in an Australian court and does not in any way need to or in fact invoke the Native Title Act?

MS WEBB:   We say the common law does that but on the enactment of the Native Title Act, then the enhanced protection of the Native Title Act was extended to native title offshore.  Now, indeed, prior to that native title, as has been recognised by your Honour in Fejo v Northern Territory was fragile, susceptible to defeasance at common law, so there was certainly enhanced protection, but that is not to say that the perhaps limited or perhaps even problems with mechanisms for enforcement in itself prevented the recognition of native title by the common law in that area.

KIRBY J:   Yes, thank you.

MS WEBB:   The change brought about by Mabo [No 2] which was in itself a development was to accept a preferable rule that a mere change in sovereignty does not extinguish pre-existing rights.  The reference to that, which I will not take your Honours to, is at page 57 point 3 in the judgment of Justice Brennan.  It is those continuing rights that are recognised by the common law, although they are not derived from the common law, but upon recognition they become enforceable as common law rights.  We say that enforceability of rights is not a precondition to the recognition of them, rather that enforceability flows from the recognition of the rights.

In Mabo [No 2] at page 61 point 3 his Honour Justice Brennan stated the proposition this way:

Secondly, native title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual.

As I have already posited, the enactment of the Native Title Act upon that enactment, recognition by the common law has given rise to a statutory protection of native title far more extensive than could have been found at common law.

A flaw in the Commonwealth’s argument which appears to proceed on the assumption that common law can only recognise rights and interests that the common law can enforce and protect is identified by Justice Merkel at appeal book 11, page 2212, through paragraphs [489] to [491].  In those passages his Honour points out that there is an inconsistency in the Commonwealth’s argument or submission that common law can only recognise native title or interest in an area where the common law applies where nonetheless their submission is also based on the recognition of common law public rights of navigation and fishing beyond ‑ ‑ ‑

GUMMOW J:   The problem is this territorial notion of where the common law applies.

MS WEBB:   It is, your Honour.  We say you do not need to be bothered with that on our basis of recognition of native title offshore.

HAYNE J:   It is not self-evident to me that the public right of navigation or the public right to fish could not or would not be enforced by a court if it could assert jurisdiction over the individual who is threatening to breach it.  If the individual who threatened to impede the exercise of the public right could be brought before a court, could the Attorney, could the individual suffering special damage enforce the right?  It seems to me it could.

GUMMOW J:   It would be a species of nuisance.

MS WEBB:   Your Honour, we would not put any other proposition.  In these passages, however, Justice Merkel, while he suggests that it is not a problem, the difficulty is not that the common law only recognises native title which it can enforce or protect.  Justice Merkel finds the difficulty with recognition of native title offshore in his conceptual basis for recognition of native title offshore depending upon it being a burden on the Crown’s radical title.  With respect to his Honour, this approach, we say, also inverts the reasoning which underpinned the recognition of native title in Mabo [No 2] as pre‑existing rights which were not extinguished by the acquisition of sovereignty.

What we are concerned with are rights which survived sovereignty.  Being a burden on the Crown’s radical title was not a precondition to the recognition.  Rather, having recognised pre‑existing indigenous rights, those rights were accommodated into the doctrine of tenure, a basic doctrine of land law as described by his Honour Justice Brennan in Mabo [No 2], and they were accommodated by recognising them as a burden on the radical title of the Crown.  That itself is a logical postulate required to support the doctrine of tenure.

McHUGH J:   There is some problem about the use of the term “recognition”.  Is it not one of the most fundamental principles of the common law that where there is no remedy, there is no right?  Earlier you said the common law could recognise a right without having a remedy.  Maybe you did not say it; maybe Justice Merkel said it.  I have difficulty with that.  Can you give me any illustrations of the common law recognising a right for which it did not have a remedy?  The forms of action were all based on the notion of a remedy.  The remedy in effect preceded the right.

MS WEBB:   Your Honour, I confess I cannot.  However, the answer may well lie in the situation here where we are dealing with an intersection of common law and rights that are derived from another legal system.  So that here we have the common law recognising the fact of pre‑existing rights and interests which then it says will continue after sovereignty and will be enforceable as common law rights but they are not derived from the common law.  The answer may well lie in that.  I otherwise cannot assist your Honour on that.

HAYNE J:   But that intersection where you have rights derived from one legal system being enforced by this is a commonplace of the common law.  The whole conflict of laws is directed to dealing with just that sort of case.  So that the bare fact that the right finds an origin - perhaps not its origin or its only origin but finds an origin - in another legal system is not conclusive, it seems to me, of the question whether the common law will do anything about interference with that right.  Rather, that question is dealt with in the ordinary sequential steps of jurisdiction, “Can we get the case into court?  If we can get it into court, then which law do we apply?”  A commonplace of the common law.

MS WEBB:   Yes, indeed, your Honour, and that is our submission, that the recognition precedes the enforceability.

HAYNE J:   The difficulty I have with Justice Merkel’s statements at paragraphs [489] and following is that they appear not to address the question of enforceability as at first a question of jurisdiction and then later a question of choice of law, which, at least at the moment, seems to me to be a way in which the problem can be analysed.

MS WEBB:   Your Honour, we would not differ from that proposition that you put.  The other difficulty that we would identify with Justice Merkel’s approach is that in the absence of radical title offshore, Justice Merkel instead finds native title offshore being a burden on the Crown’s sovereignty.  It is for the same reason we identify with respect to radical title we say there is no requirement that native title burden anything before it can be recognised and that is to say that on land ‑ ‑ ‑

GAUDRON J:   Do you say that in respect of land and sea?

MS WEBB:   We say that in respect of land and sea, your Honour.  On land and in the discourse of land law recognition results in the burdening, not the reverse.  It is the accommodation of rights derived from another legal system that are then seen as the burden on the radical title of the Crown in order to accommodate it into the doctrine of land tenure.

We say that it is by reference to the traditional laws and customs that common law recognises and defines native title rights and interests possessed by indigenous people in relation to land and waters, not by reference to the Crown’s radical title or to the assertion of sovereignty.

As Justice Olney at first instance found on the evidence, no distinction is made by the first respondents between the sea and land components of their country in terms of their connection with country, that is to say their connection with sea and land is undifferentiated.  I can give your Honours the reference to that at appeal book 8 at page 2012 paragraph 70.  There his Honour is referring to the evidence with respect to the estate which could also be described as the country of a group of people called an “estate group” in anthropological terms and the estate group are people with rights and interests in country, and at paragraph 70 his Honour said:

An estate is usually made up of a single continuous tract of land and sea but it may have separate smaller tracts as well.  No distinction is made between the sea and land components of an estate but as a matter of convenience the sea component of an estate is referred to as the “sea country” of the relevant estate group.

However, that is not to say that the nature of the rights and interests in respect of sea country and land country are undifferentiated.  The plain differentiation between land and sea in terms of possession and occupation of land on one hand, and use and enjoyment of the sea on the other, and accepted by all the judges in the case, means, in our submission, that possession and occupation of the land is what provides the foothold for rights of use and enjoyment of the sea.

GAUDRON J:   Possession “and” occupation or possession “or” occupation?

MS WEBB:   Perhaps, it is, your Honour, possession or occupation.  Although, Justice Toohey finds native title grounded in occupation, and it would seem that in the sense of people occupying land country and deriving sustenance from the sea, perhaps, the emphasis should be on occupation rather than possession.

GAUDRON J:   It certainly could be disjunctive.  It does not have to be the conjunctive, yes.

MS WEBB:   In determining whether the rights and interests that are asserted by the first respondents fall within section 223(1) and were, thus, capable of being the subject of the determination of native title, the learned trial judge had defined, firstly, that the rights and interests claimed were possessed under the traditional laws acknowledged and the traditional customs observed by the first respondents, and that is the first requirement at section 223(1)(a) of the Act.

As to the question of what is meant by “traditional,” in that subsection, we would, respectfully, adopt the approach of his Honour Justice Olney. If I could take your Honours to page 2019, and at paragraph 85 his Honour there deals with the word “traditional” in section 223. He say:

First, there is the word “traditional”.  The question of what is a traditional law or traditional custom has excited some interest in cases in overseas jurisdictions but the law in Australia is readily capable of understanding without reference to external authority.  The general thrust of the majority judgments in  Mabo No 2 indicates that the traditional laws and traditional customs of Aboriginal peoples and Torres Strait Islanders are the laws and customs which have their origins in the culture and social organisation of the relevant group as it existed prior to the advent of non-Aboriginal interference with that culture and social organisation.

GAUDRON J:   So you accept it is not static?

MS WEBB:   We accept it is not static.  In Mabo [No 2] Justice Brennan said, at page 61:

Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too.  But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.

It is the traditional basis of the currently acknowledged and observed laws and customs which attract recognition of native title.

His Honour then goes on and says:

MR BENNETT:   I accept that certain statutes apply to it and it may follow as a matter of logic from that that the common law of the interpretation of statutes might have to be applied to that interpretation.  Further than that, I would not accept that, your Honour.

GAUDRON J:   That does not, it seems to me, take account of the fact that section 80 would, at least to some extent, render the common law applicable.  Without being specific – I do not think one needs to be specific – assume litigation in a Federal Court with respect to matters or events occurring in the territorial sea.

MR BENNETT:   Your Honour, we would not accept that section 80 applies to that.

GAUDRON J:   At all?

MR BENNETT:   At all.

GAUDRON J:   It has no application?

MR BENNETT:   Has no application.

GAUDRON J:   Notwithstanding litigation in the Federal Court with respect to those matters and events?

MR BENNETT:   Yes, your Honour, and the position would be the same if one were dealing with events which took place in the middle of the Pacific Ocean or for that matter, on the moon.  One is dealing with a place where there is not a system of law.

GAUDRON J:   That is not the question, whether there is a system of law or not.  The question is whether, in the event of litigation within jurisdiction in a Federal Court, the common law would be applied.

MR BENNETT:   The answer is no, your Honour.

GAUDRON J:   No, because you say the common law is simply not applicable to anything below the low-water mark, in the absence of statute?

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   Can two people who go out fishing, whilst they are on the fishing boat enter into a contract for the sale and purchase of the fishing boat?

MR BENNETT:   Your Honour, on a boat they are on Australian territory, being an Australian boat, and that ‑ ‑ ‑

GLEESON CJ:   All right.  Suppose two surfboard riders go out, can they make a contract?

MR BENNETT:   That would be a question whether a surfboard is a boat, your Honour.  But if two swimmers go out, the ‑ ‑ ‑

GLEESON CJ:   Suppose two surfboard riders are sitting alongside one another waiting to be taken by a shark, while they are waiting for it to come, can they enter into a binding contract for the sale of a car?

HAYNE J:   Disposing of their testamentary estate.

MR BENNETT:   Your Honour, if they are able to do so, they are able to do so because of the law applicable to their persons where they are and the law of the forum.  They are not enabled to do so because of the law of the place they are in and there is no law of the place where they are in.  Now that may or may not – and this is why I am not giving your Honour a direct answer – that may or may not be fatal to the validity of a contract.  The answer is exactly the same as if two people go to the moon and make a contract and there is a dispute over it in an Australian court.  My answer to your Honour would be the same in those two cases.  I am not sure what the answer is for the reason I have given, but ‑ ‑ ‑

GUMMOW J:   But the question is, why does one apply something other than the lex fori?  It is a fortiori you would apply in lex fori because there is nothing else to apply.  You say you would apply nothing.

MR BENNETT:   If you apply the lex fori I have got no problem of giving a positive answer to the question but that does not affect ‑ ‑ ‑

GLEESON CJ:   But it follows form that the common law of Australia applies to the transaction.  You do not have to say the common law of Australia operates on the moon, all you have to say is that if two astronauts get involved in litigation in an Australian court the Australian court will apply the common law of Australia to the transaction they entered into on the moon.

MR BENNETT:   In that case I am content with that analysis but that analysis simply does not affect my argument in this case because here, of course, we are dealing with rights in real property, but the ‑ ‑ ‑

GAUDRON J:   No, not necessarily.  There is nothing to say that we are dealing with rights in real property.  What we are dealing with is native title rights, or native title rights and interests, as defined in the Act.

MR BENNETT:   Yes, your Honour, and in my submission, that is rights in real property.

GLEESON CJ:   Is that a convenient time, Mr Solicitor?

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   We will adjourn, now, until 10.15 tomorrow morning.

AT 4.22 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 8 FEBRUARY 2001